WALSH,
J.:—This
is
an
appeal
by
the
Minister
from
a
judgment
of
the
Tax
Appeal
Board
dated
August
29,
1968
allowing
respondent’s
appeal
from
an
estate
tax
re-assessment
dated
January
26,
1967,
levying
a
tax
in
the
amount
of
$26,430.41
in
respect
of
the
estate
of
Elizabeth
Catharine
(Fraser)
Black.
The
parties
are
in
agreement
as
to
the
facts
of
the
case
which
involves
the
interpretation
of
the
will
of
the
late
Harvey
H.
Black,
husband
of
the
late
Elizabeth
Catharine
(Fraser)
Black,
and
an
Agreed
Statement
of
Facts
was
filed
in
the
record.
The
said
Harvey
H.
Black
died
domiciled
in
the
Province
of
Quebec
on
March
13,
1957,
having
made
a
last
will
and
testament
in
notarial
form
dated
December
6,
1945,
leaving
as
beneficiaries
his
said
widow
and
three
children.
His
said
widow
Elizabeth
Catharine
(Fraser)
Black
died
on
August
15,
1965
domiciled
in
the
Province
of
Quebec
and
it
is
the
contention
of
the
appellant
that
at
the
time
of
her
death
she
had
a
general
power
within
the
meaning
of
Section
58(1)
(i)
of
the
Estate
Tax
Act
to
dispose
by
instrument
inter
vivos
of
the
property
inherited
from
her
late
husband
within
the
meaning
of
Sections
3(1)
(a)
and
3(2)
(a)
of
the
Estate
Tax
Act.
The
relevant
sections
of
the
Act
read
as
follows
:
3.
(1)
There
shall
be
included
in
computing
the
aggregate
net
value
of
the
property
passing
on
the
death
of
a
person
the
value
of
all
property,
wherever
situated,
passing
on
the
death
of
such
person,
including,
without
restricting
the
generality
of
the
foregoing,
(a)
all
property
of
which
the
deceased
was,
immediately
prior
to
his
death,
competent
to
dispose;
3.
(2)
For
the
purpose
of
this
section,
(a)
a
person
shall
be
deemed
to
have
been
competent
to
dispose
of
any
property
if
he
had
such
an
estate
or
interest
therein
or
such
general
power
as
would,
if
he
were
sui
juris,
have
enabled
him
to
dispose
of
that
property;
58.
(1)
.
.
.
(i)
“general
power”
includes
any
power
or
authority
enabling
the
donee
or
other
holder
thereof
to
appoint,
appropriate
or
dispose
of
property
as
he
sees
fit,
whether
exercisable
by
instrument
inter
vivos
or
by
will,
or
both,
but
does
not
include
any
power
exercisable
in
a
fiduciary
capacity
under
a
disposition
not
made
by
him,
or
exercisable
as
a
mortgagee;
The
will
directs
testator’s
executors
to
pay
his
debts,
funeral
and
testamentary
expenses
and
discharge
all
particular
legacies
as
soon
after
his
death
as
convenient.
Particular
legacies
are
left
to
each
of
his
children
of
the
first
degree
in
the
amount
of
$2,000.
His
wife,
the
said
Elizabeth
Catharine
Fraser
is
named
as
executrix
and
given
seizin
and
possession
of
all
testator’s
property
with
her
powers
and
seizin
extended
beyond
the
year
and
day
limited
by
law
and
provision
is
made
in
the
event
of
the
death,
resignation,
refusal
or
incapacity
to
act
of
the
said
wife
she
shall
be
succeeded
as
executrix
by
his
two
sons
and
daughter
or
the
survivor
of
them.
It
is
also
provided
that
it
shall
not
be
necessary
to
appoint
a
curator
to
any
substitution
which
may
be
created
by
this
my
will”.
The
executors
are
given
the
usual
extended
powers,
including
the
right
to
sell
or
otherwise
dispose
of
the
property
of
the
succession
and
to
determine
all
questions
and
matters
of
doubt
which
may
arise
in
the
course
of
their
administration.
The
important
clauses
of
the
will
for
the
purposes
of
this
case
read
as
follows:
ARTICLE
IV.
And
all
the
rest
residue
and
remainder
of
the
property
real
and
personal,
moveable
and
immoveable
of
every
sort
nature
and
description
of
which
I
may
die
possessed
or
in
which
I
may
have
any
interest
or
over
which
I
may
have
the
power
of
appointment
or
disposal
including
all
Policies
of
Life
Insurance
and
the
proceeds
thereof
whether
payable
to
my
wife
or
to
my
estate,
I
give,
devise
and
bequeath
to
my
wife
for
her
use
and
enjoyment,
comfort
and
general
welfare
during
the
remainder
of
her
lifetime.
ARTICLE
V.
Upon
the
death
of
my
wife
or
upon
my
death
if
she
predecease
me,
I
direct
my
Executors
to
divide
so
much
of
the
capital
of
my
Estate
as
may
then
remain
(or
the
whole
thereof
if
my
said
wife
shall
have
died
before
me)
equally
among
my
children
in
the
first
degree
with
representation
in
favour
of
their
survivors
or
survivor
of
them.
ARTICLE
VI.
The
property
hereby
given
is
so
given
upon
the
express
condition
that
it
shall
so
long
as
it
may
be
in
the
hands
of
my
Executors
be
exempt
from
seizure
or
attachment
for
the
debts
of
any
beneficiary
and
no
beneficiary
shall
have
the
right
to
assign
his
or
her
share
without
the
written
consent
of
the
Executors.
.
.
.
The
first
question
to
be
decided
is
whether
the
will
created
a
usufruct
or
a
substitution.
If
it
was
a
usufruct
as
respondent’s
counsel
contends
then
the
widow
Elizabeth
Catharine
Black
had
no
rights
as
owner
of
the
property
in
question
at
any
time
and
clearly
it
could
not
be
taxable
as
part
of
her
estate.
The
Quebec
Civil
Code
defines
usufruct
as
follows
:
443.
Usufruct
is
the
right
of
enjoying
things
of
which
another
has
the
ownership,
as
the
proprietor
himself,
but
subject
to
the
obligation
of
preserving
the
substance
thereof.
The
term
substitution
is
not
specifically
defined
but
Article
925
in
describing
the
two
kinds
of
substitution
reads
in
part
:
Fiduciary
substitution
is
that
in
which
the
person
receiving
the
thing
is
charged
to
deliver
it
over
to
another
either
at
his
death
or
at
some
other
time.
Substitution
takes
its
effect
by
operation
of
law
at
the
time
fixed
upon,
without
the
necessity
of
any
delivery
or
other
act
on
the
part
of
the
person
charged
to
deliver
over.
Article
928
reads
:
A
substitution
may
exist
although
the
term
usufruct
be
used
to
express
the
right
of
the
institute.
In
general
the
whole
tenor
of
the
Act
and
the
intention
which
it
sufficiently
expresses
are
considered,
rather
than
the
ordinary
acceptation
of
particular
words,
in
order
to
determine
whether
there
is
substitution
or
not.
Article
929
reads
in
part
:
The
disposition
which
creates
the
substitution
may
be
conditional
like
any
other
gift
or
legacy.
Article
944
reads:
The
institute
holds
the
property
as
proprietor,
subject
to
the
obligation
of
delivering
over,
and
without
prejudice
to
the
rights
of
the
substitute.
Article
952
reads:
The
grantor
may
indefinitely
allow
the
alienation
of
the
property
of
the
substitution
which
takes
place
in
such
case
only
when
the
alienation
is
not
made.
Article
962
reads
in
part:
The
substitute
takes
the
property
directly
from
the
grantor
and
not
from
the
institute.
It
is
necessary
to
read
all
the
clauses
of
the
will
as
a
whole
in
order
to
interpret
the
testator’s
true
intentions.
The
disposing
clause
in
Article
IV
gives
the
entire
residue
of
deceased’s
estate
‘‘t
my
wife
for
her
use
and
enjoyment,
comfort
and
general
welfare
during
the
remainder
of
her
lifetime’’.
The
next
clause
Article
V
states
that
upon
the
death
of
his
wife
his
executors
are
to
divide
‘‘so
much
of
the
capital
of
my
estate
as
may
then
remain,
equally
among
my
children
in
the
first
degree’’.
It
appears
clear
that
the
testator
foresaw
the
possibility
that
some
of
the
capital
of
his
estate
might
be
required
for
the
‘‘use
and
enjoyment,
comfort
and
general
welfare’’
of
his
wife
during
her
lifetime
and
that
he
does
not
merely
confine
her
interest
in
the
estate
to
the
income
as
would
be
the
case
if
a
usufruct
had
been
created.
It
appears
equally
clear
however
that
she
was
not
given
the
ownership
of
the
property
to
use
as
she
deemed
fit
without
restriction.
In
my
view
the
term
‘use
and
enjoyment,
comfort
and
general
welfare’’
indicates
merely
that
he
wanted
her
to
be
able
to
be
maintained
in
comfort
for
the
remainder
of
her
life
according
to
the
standard
of
living
to
which
they
were
accustomed,
even
if
this
involved
some
use
of
the
capital
of
the
estate,
but
that
he
certainly
did
not
intend
her
to
give
away
the
capital
of
the
estate
or
any
portion
thereof
during
her
lifetime,
and
he
clearly
sets
out
in
Article
V
what
is
to
be
done
with
the
remainder
of
the
capital,
on
her
death.
Respondent’s
counsel
points
out
that
there
are
three
essential
elements
in
a
substitution,
(a)
two
donations
of
the
same
thing,
first
to
the
institute
and
then
to
the
substitute,
(b)
in
fiduciary
subsitutions,
a
successive
order,
(c)
a
time
factor
for
the
handing
over
by
the
institute
to
the
substitute
either
expressly
or
tacitly
stipulated
There
would
have
been
no
problem
here
if
the
testator
had
simply
given
the
enjoyment
and
usufruct
of
his
estate
to
his
wife
with
the
ownership
to
his
children,
as
in
this
case
there
would
not
have
been
a
substitution
because
there
would
not
have
been
two
successive
donations
of
the
ownership.
I
believe,
however,
that
the
wording
of
the
present
will
creates
a
substitution
de
residuo
of
the
property
not
required
for
the
‘
use
and
enjoyment
comfort
and
general
welfare’’
of
the
widow
during
her
lifetime.
This
portion
of
testator’s
estate
never
passed
in
ownership
to
his
widow,
but
went
directly
to
the
children
at
a
period
of
time
determined
by
the
date
of
the
death
of
his
widow
(Article
962
of
the
Civil
Code).
The
benefit
she
received
was
the
income
from
his
entire
estate
during
her
lifetime
(as
if
she
had
been
given
a
usufruct)
and
a
right
to
such
portion
of
the
capital
as
required
for
‘‘her
use
and
enjoyment,
comfort
and
general
welfare’’.
The
ownership
of
his
entire
estate
did
not
therefore
pass
to
his
children
at
his
death,
and
there
was
a
lapse
of
time
before
the
ownership
of
the
unused
portion
passed
to
them
on
the
death
of
his
widow,
but
when
it
did
so
pass
it
passed
to
them
directly
from
his
estate
and
not
from
her
estate.
The
will
therefore
created
a
substitution
de
residuo
and
not
a
usufruct.
The
fact
that
there
was
a
clause
stating
“it
will
not
be
necessary
to
appoint
a
curator
to
any
substitution
which
may
be
created
by
this
will’’
does
not
affect
this,
as
this
is
a
standard
clause
put
in
many
wills
to
avoid
the
rather
cumbersome
procedure
set
out
in
the
Civil
Code
relating
to
curators
to
substitutions
which
a
testator
often
wishes
to
avoid,
even
though
he
has
in
fact
created
a
substitution
in
his
will.
The
question
is
definitively
dealt
with
in
the
Supreme
Court
judgment
in
the
case
of
M.N.R.
v.
Edmund
Howard
Smith
and
Montreal
Trust
Co.,
[1960]
S.C.R.
478;
[1960]
C.T.C.
97,
where
the
majority
judgment
by
Chief
Justice
Kerwin
and
Justices
Abbott
and.
Taschereau
held
‘‘A
fiduciary
substitution
having
been
created
by
the
testator’s
will,
the
named
legatees
received
the
property
directly
from
the
testator
pursuant
to
Article
962
of
the
Civil
Code
and
consequently
that
property
was
excluded
from
the
wife’s
estate.
The
three
elements
necessary
to
create
a
substitution
were
present
in
the
testator’s
will:
two
successive
benefits
were
conferred,
one
to
the
institute
and
the
other
to
the
substitutes,
and
there
was
to
be
a
period
between
the
enjoyment
of
the
institute
and
the
opening
of
the
substitution.
The
fact
that
the
institute
could
dispose
of
the
property
was
no
obstacle,
as
Article
952
provides
for
a
substitution
de
residuo."
An
article
by
Notary
Antonin
Lefebvre
in
La
Revue
du
Notariat*
cited
by
appellant,
is
to
the
contrary,
indicating
that
an
essential
element
of
a
substitution
is
to
conserve
the
property
and
to
deliver
it,
and
accordingly
the
widow
can
sell
or
hypothecate
the
property,
then
there
is
no
substitution
but
simply
a
legacy
‘‘de
residuo"
and
at
her
death
the
residue
of
the
property
inherited
from
the
husband
enters
into
her
succession
and
not
that
of
her
husband,
and
the
children
receive
the
residue
not
from
their
father,
as
they
would
have
if
there
had
been
a
substitution,
but
rather
from
the
succession
of
their
mother.
This
article
was
however
written
in
1945,
some
time
before
the
Smith
judgment,
and
in
any
event
could
not
be
cited
as
good
authority
in
the
light
of
the
judgment
in
that
case.
Moreover
it
dealt
with
a
hypothetical
clause
giving
her
the
absolute
right
to
dispose
of
the
property,
which
is
not
the
present
case.
The
fact
that
I
have
concluded,
however,
that
the
will
created
a
substitution
de
residuo
and
not
a
usufruct,
does
not
by
any
means
mean
that
the
property
is
taxable
under
the
provisions
of
Section
3(1)
(a)
of
the
Estate
Tax
Act.
It
is
here
that
the
exact
wording
of
the
rights
given
to
the
wife
under
the
will
becomes
of
paramount
importance
and
the
applicability
of
the
jurisprudence
cited
by
both
parties
must
be
carefully
examined
in
the
light
of
the
words
used
in
the
various
wills
under
review.
In
the
case
of
The
Montreal
Trust
Company
v.
M.N.R.
(Bathgate
Estate),
[1956]
S.C.R.
702;
[1956]
C.T.C.
146,
the
testator
left
the
residue
of
his
estate
to
his
trustees
to
pay
the
net
income
to
his
wife
during
her
lifetime
and
‘‘to
pay
to
my
wife
the
whole
or
such
portion
of
the
corpus
thereof
as
she
may
from
time
to
time
and
at
any
time
during
her
lifetime
request
or
desire’’.
On
her
death
the
residuary
estate
was
to
be
divided
equally
between
his
children.
It
was
held
that
the
wife
was
competent
to
dispose
of
the
residue
of
her
husband’s
estate
as
she
had
a
general
power
enabling
her
to
appoint
or
dispose
of
it
and
that
‘‘when
a
donee
can
require
the
whole
of
the
residue
to
be
paid
to
him
and
thereupon
dispose
of
it
as
he
sees
fit
he
has
power
or
authority
to
dispose
of
the
property
as
he
sees
fit
within
the
meaning
of
Section
4(1)
of
the
Act,’’*
(compare
Sections
3(2)
(a)
and
58(1)
(i)
of
Estate
Tax
Act).
In
that
case
however
it
must
be
noted
that
the
trustees
had
to
pay
her
whatever
she
requested
or
desired,
there
apparently
being
no
discretion
in
them
to
refuse
such
a
request.
This
case
can
be
compared
with
that
of
Montreal
Trust
Company,
Dame
Orian
Hays
Hickson
and
Ralph
Doug
al
Yuile
v.
M.N.R.,
[1964]
S.C.R.
647;
[1964]
C.T.C.
367,
where
the
mother
of
the
deceased
left
a
share
of
the
residue
of
her
estate
in
trust
for
his
children,
with
the
provision
that
if
he
should
die
childless
this
share
was
to
be
paid
to
his
testamentary
or
legal
heirs.
He
died
childless
and
by
his
will
appointed
his
widow
as
his
universal
legatee.
It
was
held
that
when
the
substitution
opened
the
deceased’s
widow,
as
substitute,
took
the
fund
directly
from
the
mother
of
the
deceased
and
not
from
the
institute,
her
husband,
and
also
that
the
argument
that
the
deceased
had
such
a
general
power
to
dispose
of
the
fund
as
to
bring
the
property
within
Section
3
of
the
Act
could
not
be
upheld.
Since
the
deceased
could
not
dispose
of
the
property
to
anyone
but
his
testamentary
heirs,
he
did
not
have
the
power
to
dispose
of
it
“as
he
saw
fit’’
within
the
meaning
of
Section
58(1)
(1).
The
Superior
Court
case
of
Dame
Campion
et
al.
v.
Carlin
&
Cholette
es-qual,
62
S.C.
43,
did
not
deal
with
estates
tax
but
rather
with
the
title
to
an
immoveable
sold
by
the
wife.
The
purchaser
himself
refused
to
carry
through
the
transaction,
attempting
to
avoid
his
obligation
by
alleging
that
the
plaintiff
did
not
have
the
right
to
sell
the
property
under
the
provisions
of
he
will,
as
it
was
subject
to
a
substitution.
The
will
read:
“I
give,
devise
and
bequeath
to
my
wife
.
.
.,
during
her
life
with
power
to
use
such
portion
thereof
for
her
maintenance
and
comfort
as
he
may
deem
advisable”
and
a
further
clause
pro-
vided
that
‘
should
there
remain
at
the
time
of
her
decease
any
part
or
portion
of
the
estate
hereinabove
bequeathed
to
her’’
etc.
It
was
held
that
the
substitution
created
by
the
will
was
a
substitution
de
residuo
but
in
view
of
Article
952
permitting
the
grantor
to
allow
the
alienation
of
the
property
of
the
substitution
the
wife
could
alienate
the
property
during
her
lifetime
and
give
good
title
thereto.
In
our
present
case,
however,
there
is
considerable
doubt
as
to
whether
the
wife
could
alienate
any
of
the
property
of
the
succession
herself
and
give
title
thereto,
which
question
I
will
deal
with
later.
In
the
case
of
Montreal
Trust
Company
et
al.
(Scott
Estate)
v.
M.N.R.,
[1960]
C.T.C.
308,
the
will
provided
that
the
residue
of
the
estate
was
left
to
testator’s
wife
who
was
to
have
the
right
to
‘‘freely
use
and
dispose
of
the
revenue
and
capital
as
long
as
she
lives’’.
On
her
death
whatever
had
not
been
disposed
of
was
to
pass
to
testator’s
daughter.
The
entire
capital
of
the
estate
remained
in
the
hands
of
the
executor
in
the
wife’s
lifetime
and
none
of
the
capital
was
touched.
It
was
held
however
that
the
property
was
dutiable
as
during
her
lifetime
she
had
the
capacity
to
alienate
the
property
in
question
even
though
she
could
not
do
so
by
will.
The
provisions
of
the
will
showed
the
intention
to
give
the
wife
unrestricted
power
to
alienate
the
whole
of
the
capital,
and
this
constituted
a
general
power
notwithstanding
restrictions
as
to
disposition
by
will.
lt
is
to
be
noted
that
the
wording
of
the
said
will
does
not
restrict
her
use
and
disposal
of
the
property
in
any
way,
and
is
clearly
distinguishable
from
the
present
case.
The
case
of
Estate
of
Jessie
Isabel
Bowie
v.
M.N.R.,
35
Tax
A.B.C.
213,
a
judgment
of
the
Tax
Appeal
Board
dealt
with
a
situation
where
the
residue
of
an
estate
was
left
to
the
executors
and
trustees
on
certain
trusts
by
one
of
which
they
were
instructed
to
pay
the
income
therefrom
to
deceased’s
sister
for
the
term
of
her
natural
life
with
a
proviso
that
the
sister
‘‘is
to
have
the
right
to
encroach
upon
the
principal
of
the
fund
hereby
set
aside
should
she
so
desire
for
any
purpose
or
purposes
whatsoever’’.
When
she
died,
in
assessing
her
estate
the
assets
standing
to
the
credit
of
the
trust
created
for
her
benefit
by
her
brother
were
included.
The
appeal
against
this
decision
was
allowed
since,
although
under
the
terms
of
the
trust
she
was
to
have
the
right
to
encroach
upon
the
principal
of
the
fund,
that
provision
did
not
give
her
the
right
to
revoke
or
cancel
the
trust
or
demand
that
the
entire
assets
of
the
trust
created
by
her
brother
should
be
turned
over
to
her,
so
that
she
could
personally
dispose
of
the
trust
assets
as
part
of
her
personal
estate.
The
judgment
stated,
"From
the
language
used
the
most
that
could
be
inferred
was
that
the
testator
would
be
satisfied
to
have
his
trustees
make
encroachments
for
any
purpose
or
purposes
whatcoever
which
were
for
the
benefit
of
his
sister.
’
’
The
case
of
Estate
of
Christina
Maria
Rowland
v.
M.N.R.,
[1967]
Tax
A.B.C.
1001,
another
judgment
of
the
Tax
Appeal
Board,
dealt
with
the
situation
where
a
trust
was
created
to
pay
the
wife
during
her
lifetime
the
net
income
from
the
estate
and
such
part
or
parts
of
the
capital
as
she
in
her
sole
discretion
may
require
from
time
to
time’’.
Upon
her
death
the
remaining
capital
was
to
go
to
her
son.
The
appeal
from
the
assessment
including
the
assets
of
her
husband’s
estate
in
her
estate
when
she
died
was
allowed
and
it
was
held
that
it
appeared
that
the
testator
intended
that
his
wife’s
requirements
or
needs
should
be
met
by
payments
out
of
the
capital
at
regular
intervals
if
need
should
arise.
Such
needs
had
not
arisen
and
although
she
was
bequeathed
the
right
to
decide
the
amount
of
her
needs
and
to
receive
such
amounts
from
the
capital
of
her
husband’s
estate
from
time
to
time
during
her
lifetime
if
the
income
of
the
estate
was
insufficient,
she
did
not
have
a
general
power
which
would
enable
her
to
dispose
of
all
the
capital
of
her
husband’s
estate,
and
the
property
should
therefore
not
be
included
in
the
taxable
value
of
her
estate.
This
judgment
cites
with
approval
the
Ontario
case
of
Agnew
v.
Canada
Permanent
Trust
Company,
[1933]
O.W.N.
80,
where
the
will
read:
“I
hereby
empower
my
said
wife
to
draw
from
the
corpus
of
my
estate
whatever
sums
of
money
she
may
desire
for
her
own
use.’’
Chief
Justice
Rose
held
that
her
executors
must
account
to
the
beneficiary
of
the
husband’s
estate,
as
while
she
could
draw
money
to
spend
it
for
her
own
use
she
could
not
do
so
for
reinvesting
in
her
own
name.
Dymond’s
Death
Duties*
states
that
‘‘in
cases
where
a
life
tenant
is.
empowered
to
appropriate
for
his
own
personal
maintenance
such
part
of
the
capital
of
the
settled
fund
as
he
may
need,
he
is
not
regarded
as
competent
to
dispose
of
the
part
which
he
does
not
require
(Re
Pedrotti’s
Wall
(1859),
27
Beav.
083).
On
the
other
hand
where
a
life
tenant
has
the
power
to
deal
with
such
part
of
the
capital
as
he
thinks
fit,
with
the
remainder
over
on
his
death,
he
is
competent
to
dispose
of
the
whole’’.
Loffmarh
on
Estate
Taxes
at
page
169
states:
“It
has
been
held
in
England
that
if
a
person
merely
has
power
during
his
lifetime
to
apply
for
his
own
use
such
part
of
the
funds
as
he
may
need
he
is
not
competent
to
dispose
of
that
part
which
he
does
not
need
and
which
thus
remains
intact
at
his
death
(Re
Richards,
[1902]
1
Ch.
76).”
It
is
clear
in
our
case
that
if
the
widow
could
use
capital
at
all
it
was
only
for
her
use
and
enjoyment,
comfort
and
general
welfare’’
and
for
this
limited
purpose
only
and
she
therefore
had
no
right
of
disposal.
I
reject
appellant’s
argument
that
‘enjoyment”
might
include
the
right
to
make
donations
to
third
parties
of
the
property,
as
inconsistent
with
the
context
and
obvious
intention
of
the
clause.
The
definition
of
general
power
in
Section
58(1)
(i)
quoted
above
refers
to
the
right
to
‘‘appoint,
appropriate
or
dispose
of
property
as
he
sees
fit”
and
it
is
clear
that
the
present
will
does
not
give
this
unlimited
right
to
the
widow.
She
was
therefore
not
competent
to
dispose
of
the
property
within
the
meaning
of
Sections
3(1)
(a)
and
3(2)
(a)
of
the
Act.
Even
if
her
use
of
capital
was
not
restricted
by
the
wording
of
the
will,
however,
it
would
have
been
restricted
in
practice
by
the
facts
in
this
case.
Had
Mrs.
Black
remained
as
executrix
she
could
have
retained
seizin
of
the
property
in
that
capacity,
and
by
virtue
of
the
extended
powers
given
to
the
executor
under
the
will
have
sold
same
giving
valid
title,
or
alternatively
she
could
have
turned
over
the
property
to
herself
as
institute
under
the
substitution
and
then
have
sold
such
portion
of
same
as
she
deemed
necessary
for
‘‘her
use
and
enjoyment,
comfort
and
general
welfare’’.
She
would
be
wearing
two
hats,
as
executrix
under
the
will
and
institute
under
the
substitution,
and
from
the
practical
point
of
view
there
would
therefore
have
been
no
control
over
her
use
of
this
discretion.
There
has
been
somewhat
conflicting
jurisprudence
on
the
subject
of
the
validity
of
such
alienations.
The
case
of
Dame
Campion
et
al.
v.
Carlin
and
Cholette
(supra)
held
that
she
could
sell
and
give
valid
title
basing
the
finding
on
Article
952
of
the
Civil
Code.
Here
the
disposing
clause
contained
the
words
‘‘as
she
may
deem
advisable”
and
there
was
no
indication
that
this
right
was
subject
to
the
control
of
any
executor
or
trustee.
The
case
of
Dame
Ricard
v.
St.
Jean
(1959),
77
S.C.
302,
also
permitted
the
sale
of
an
immoveable
by
the
widow
during
her
lifetime.
The
holding,
however,
decided
that
she
was
neither
a
usufructuary
nor
an
institute
under
a
substitution
and
was
therefore
under
no
obligation
to
conserve
and
hand
over
the
property,
the
will
having
created
a
fideicommis
de
residuo
without
a
substitution.
A
similar
finding
was
made
in
the
case
of
Brais
v.
Dame
Fortier
et
al.,
[1955]
S.C.
222,
but
it
should
be
noted
that
the
wife
was
given
the
right
not
only
of
administration
of
the
property
of
the
succession,
but
even
the
disposal
of
same.
The
author
Antonin
Lefebvre
in
La
Revue
du
Notariat
(supra)
would
also
permit
the
alienation
of
the
property,
but
on
the
basis
that
there
is
no
substitution
if
there
is
no
obligation
to
conserve,
but
merely
a
legacy
de
residuo.
He
is,
however,
dealing
with
a
hypothetical
clause
reading
as
follows:
Je
donne
et
lègue
à
mon
époux,
tous
mes
biens,
meubles
et
immeubles,
que
je
délaisserai
le
jour
de
mon
décès
et
qui
composeront
ma
succession,
pour
par
elle
en
jouir
et
disposer
en
pleine
et
absolue
propriété
à
compter
de
mon
décès
et
comme
de
chose
lui
appartenant,
cependant
je
veux
et
entends
que
ce
qui
restera
de
mes
biens
lors
du
décès
de
madite
épouse
retourne
à
mes
enfants,
et,
il
ne
sera
de
même
si
ma
légataire
universelle
convole.
which
is
clearly
much
wider
than
the
clause
in
the
present
will,
as
it
gives
the
wife
the
right
to
enjoy
and
dispose
of
the
assets
in
full
and
absolute
ownership
as
if
they
belong
to
her.
On
the
other
hand,
the
majority
judgment
in
the
Supreme
Court
in
the
case
of
Edmund
Smith
and
Montreal
Trust
Co.
Executors
under
the
will
of
Helen
KR.
D.
Smith
et
al.
v.
M.N.R.
(supra)
held
that
a
fiduciary
substitution
was
created.
‘‘The
fact
that
the
institute
could
dispose
of
the
property
was
no
obstacle
as
Article
952
provides
for
a
substitution
de
residuo”.
This
case
was
not
dealing
with
the
validity
of
title
which
the
institute
could
convey
by
disposing
of
part
of
the
property
during
her
lifetime,
and
the
actual
question
of
whether
she
was
competent
to
dispose
of
the
property
immediately
prior
to
her
death
was
settled
by
the
fact
that
she
had
some
13
years
after
her
husband’s
death
signed
a
notarial
document
repudiating
any
right
given
her
in
the
will
to
dispose
of
the
property
comprising
the
rest
of
the
estate
and
had
delivered
over
to
the
substitutes
under
the
substitution
in
anticipation
of
the
term
appointed
for
the
opening
thereof,
the
naked
ownership
of
the
property
in
the
residue
of
the
estate,
but
this
does
not
diminish
the
authority
of
the
finding
quoted.
It
is
not
necessary
for
the
decision
of
the
present
case
to
reach
a
conclusion
as
to
whether
alienations
by
Mrs.
Black
would
have
given
valid
title
to
the
property
if
they
had
not
been
for
her
‘‘use
and
enjoyment,
comfort
and
general
welfare’’,
however.
The
fact
is
that
in
the
present
case
Mrs.
Black
was
at
no
time
in
a
position
to
appoint,
appropriate
or
dispose
of
the
property
as
she
saw
fit,
and
certainly
she
was
not
so
immediately
prior
to
her
death.
The
record
discloses
that
Harvey
Black
died
on
March
13,
1957
and
that
five
days
later,
on
March
18,
1957,
his
widow
formally
renounced
the
office
of
executrix,
which
she
was
permitted
to
do
under
the
terms
of
the
will,
and
the
execution
of
the
will
thereupon
devolved
upon
her
two
sons
and
daughter
or
the
survivor
of
them
according
to
the
provisions
of
clause
VII
of
the
will.
Though
she
did
not
formally
renounce
to
the
substitution
nor
hand
over
the
assets
thereof
to
the
institute,
as
in
the
Smith
case,
it
is
clear
that
the
seizin
of
the
property
of
the
estate
remained
vested
in
the
executors.
As
a
matter
of
interest
it
might
be
noted,
though
I
do
not
believe
this
affects
the
decision
of
the
issue,
that
she
had
previously
named
one
of
her
sons,
Donald
Harvey
Fraser
Black,
as
her
legal
attorney
by
notarial
deed
dated
February
27,
1957
and
it
appears
that
her
mental
condition
was
deteriorating
to
a
point
where
she
could
no
longer
manage
her
own
affairs.
It
can
also
be
noted
that
none
of
the
capital
was
in
fact
ever
disposed
of
for
‘‘her
use
and
enjoyment,
comfort
and
general
welfare’’.
The
judgment
of
the
Tax
Appeal
Board
points
out
that
before
dealing
in
any
way
with
the
assets
of
the
estate
the
executors
had
to
comply
with
Section
46(1)
of
the
Estate
Tax
Act
requiring
them
before
transferring,
delivering
or
paying
over
any
property
to
any
successor
to
pay
the
amount
payable
pursuant
to
or
by
virtue
of
the
Act
as
tax
or
to
furnish
security
for
the
payment
of
this.
It
is
clear
that
during
the
five-day
interval
between
the
death
of
the
testator
and
her
resignation
as
executrix
Mrs.
Black
could
not
have
legally
disposed
of
any
part
of
the
corpus
of
the
estate
in
any
manner
whatsoever.
Certainly
she
could
not
do
so
immediately
prior
to
her
death
within
the
meaning
of
Section
3(1)
(a)
of
the
Estate
Tax
Act.
A
number
of
cases
have
dealt
with
the
situation
where
seemingly
wide
powers
of
disposal
(in
many
eases
far
less
restricted
than
the
powers
in
the
present
will)
have
nevertheless
been
held
to
be
restricted
by
the
necessity
of
intervention
of
executors
or
trustees
so
that
it
has
been
decided
that
the
beneficiary
of
the
powers
was
not
competent
to
dispose
within
the
meaning
of
the
Act.
The
Privy
Council
case
of
Commissioner
of
Estate
and
Succession
Duties
(Barbados)
v.
Trevor
Bowring,
[1962]
A.C.
171,
dealt
with
a
trust
set
up
in
Massachusetts
by
the
donor
to
pay
her
income
from
it
during
her
lifetime
and
following
her
death
to
her
son.
There
was
a
clause
providing
that
during
her
lifetime
she
should
have
the
right
to
amend
or
revoke
the
trust
in
whole
or
in
part
by
an
instrument
in
writing,
provided
however
that
this
was
consented
to
in
writing
by
the
trustees.
Under
Massachusetts
law,
where
the
trust
was
created,
the
trustees
had
the
right
to
consent
or
refuse
to
consent
to
such
an
amendment.
At
the
date
of
her
death
in
Barbados,
estate
duty
was
claimed
on
the
trust
property
under
provisions
of
their
Statutes
practi-
cally
identical
to
the
relevant
sections
of
our
Estate
Tax
Act.
It
was
held
that
the
donor
was
not,
at
the
date
of
her
death,
possessed
of
a
general
power
making
her
competent
to
dispose
of
the
trust
property
since
any
amendment
or
revocation
of
the
trust
deed
was
subject
to
the
consent
of
the
trustees
and
as
a
consequence
estate
duty
was
not
payable.
In
the
case
of
M.N.R.
v.
Canada
Trust
Company
(Estate
Mary
Viola
Maine),
[1964]
C.T.C.
179,
the
deceased
had,
under
the
will
of
her
husband,
the
income
for
life
on
the
capital
of
his
estate
and
the
trustees
were
authorized
to
make
such
additional
payments
out
of
the
capital
as
from
time
to
time
the
widow
‘
in
her
absolute
discretion’’
might
deem
essential
to
maintain
her
as
she
was
accustomed.
These
were
certainly
wider
powers
than
given
in
the
present
will
and
the
Minister
contended
that
the
widow
could
have,
the
day
after
her
husband’s
death,
demanded
the
whole
of
the
trust
property.
It
was
held
by
Jackett,
P.
that,
from
he
context
of
the
whole
will,
the
authority
given
the
trustees
to
make
payments
out
of
the
capital
of
the
estate
was
not
overridden
by
the
discretionary
powers
given
to
the
widow
to
request
such
payments.
The
final
decision
as
to
whether
such
payments
would
be
made
was
reserved
in
favour
of
the
trustees
and
the
Minister’s
appeal
was
therefore
dismissed.
In
the
Tax
Appeal
Board
case
of
Estate
of
Jessie
Isabel
Bowie
v.
M.N.R.
(supra),
where
the
trust
in
favour
of
deceased’s
sister
permitted
encroachment
on
the
capital
‘‘should
she
so
desire
for
any
purpose
or
purposes
whatsoever’’
the
finding
was
nevertheless
to
the
effect
that
this
provision
did
not
give
her
the
right
to
revoke
or
cancel
the
trust
or
demand
that
the
entire
assets
of
the
trust
created
should
be
turned
over
to
her
so
that
she
could
personally
dispose
of
the
assets
as
part
of
her
personal
estate.
“Neither
was
it
possible
to
visualize
at
the
time
that
the
trustees
would
accede
to
her
wholesale
demand
when
the
whole
tenor
of
the
will
was
diametrically
opposed
to
revocability
or
cancellation
of
the
trust.
From
the
language
used
the
most
that
could
be
inferred
was
that
the
testator
would
be
satisfied
to
have
his
trustees
make
encroachments
for
any
purpose
or
purposes
whatsoever
which
were
for
the
benefit
of
his
sister
but
it
was
evident
that
the
right
to
encroach
should
not
be
regarded
as
coming
within
the
definition
of
general
power.
’
’
A
similar
finding
was
made
in
another
Tax
Appeal
Board
case
of
Rowland
v.
M.N.R.
(supra).
Here
the
trust
was
to
pay
the
wife
during
her
lifetime
the
net
income
from
the
estate
and
‘‘such
part
or
parts
of
the
capital
that
she
in
her
sole
discretion
might
require
from
time
to
time’’.
Here
again
the
powers
were
clearly
wider
than
those
in
the
present
will.
The
finding
was
that
the
testator
intended
that
the
wife’s
requirements
or
needs
should
be
met
by
payment
out
of
the
capital
at
regular
intervals
if
need
should
arise.
She
was
given
the
right
to
decide
the
amount
of
her
needs
and
to
receive
such
amounts
from
the
capital
of
her
husband’s
estate
from
time
to
time
during
her
lifetime
if
the
income
of
the
estate
was
insufficient
but
this
did
not
give
her
a
general
power
which
would
have
enabled
her
to
dispose
of
the
capital
of
her
husband’s
estate
and
that
it
should
therefore
not
have
been
included
in
the
aggregate
taxable
value
of
her
estate.
This
judgment
quoted
favourably
the
Maine
case
previously
cited.
Both
the
Bathgate
and
Scott
cases
(supra)
can
readily
be
distinguished
in
that
the
will
in
the
former
case
used,
as
I
have
previously
indicated,
the
words
‘‘and
to
pay
to
my
wife
the
whole
or
such
portion
of
the
capital
thereof
which
she
may
from
time
to
time
and
at
any
time
during
her
life
request
or
desire”
so
she
could
require
the
trustees
to
pay
the
whole
or
any
portion
of
it
to
her
at
any
time
and
they
would
have
no
discretion
to
refuse,
while
in
the
latter
case
the
beneficiary
was
given
the
right
“to
freely
use
and
dispose
of
the
revenue
and
capital
as
long
as
she
lives’’.
Although
the
capital
remained
in
the
hands
of
the
executors
without
having
been
touched
at
the
time
of
her
death
they
could
not
have
refused
to
turn
it
over
to
her
on
her
request
as
the
will
also
contained
a
clause
stating
that
this
right
was
“subject
always
to
the
seizin,
rights
and
powers
hereby
conferred
upon
my
executors
in
respect
to
such
of
the
property
from
time
to
time
not
used
or
disposed
of
by
my
wife’’,
which
makes
it
clear
that
the
executors
only
retained
seizin
of
the
balance.
To
conclude
therefore
it
is
abundantly
clear
in
the
present
case
that
Mrs.
Black
did
not
have
a
general
power
within
the
definition
of
Section
58(1)
(i)
of
the
Act
to
dispose
of
the
property
‘‘as
she
saw
fit’’,
and
even
if
she
had
such
power
under
the
will,
it
could
not
have
been
exercised
by
her
without
the
intervention
of
the
executors
following
her
renunciation
as
executrix,
and
the
executors,
being
the
same
persons
who
would
eventually
inherit
upon
the
opening
of
the
substitution,
would
be
presumed
to
permit
disposal
of
the
capital
only
for
‘‘her
use
and
enjoyment,
comfort
and
general
welfare’’
and
not
for
any
other
purpose.
She
therefore
was
not
competent
to
dispose
of
the
capital
of
the
estate
which
was
in
the
hands
of
testator’s
executors
at
a
date
“immediately
prior
to
her
death’’
and
such
property
was
not
taxable
as
part
of
her
succession.
The
appeal
is
therefore
dismissed
with
costs.
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